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Corporate Adolescence: Why Did “We” Not Work?
Get PDFThis article explores a series of rent-seeking behaviors and fiduciary deficits that are playing a role in the “growth” and demise of U.S. companies. Start-up financing occurs through exemptions that remove disclosure obligations required in public markets, assuming that private ordering suffices. The exemptive-privilege premise is that parties to financing rounds will be faithful agents, i.e., fiduciaries, to their sources of capital. Where there are conflicts of interest, fiduciary deficits will arise unless either the threat of litigation for breaches of duty sufficiently deters the resulting opportunism or the sources of capital are themselves sufficiently watchful and savvy to combat the opportunism. As private capital sources become more numerous and diverse, the latter may not happen so reliably.
We examine this territory through a business-school like case study of WeWork, one of the most recent examples of failed private ordering and one where the prescribed corporate governance mechanisms failed to fill the gaps. WeWork’s extraordinary growth over eight rounds of financing both strengthened the hand of its CEO, Adam Neumann and concealed danger signs. Indeed, in the absence of required disclosure, fiduciary duties take on extra significance. Yet, the WeWork board exhibited multiple fiduciary deficits resulting in what is a cautionary story about governance failure and a warning to those who are focused on expanding “access” to these funding rounds
In short, the funding and governance systems are not designed for long-term “startup” governance, and WeWork reveals the systemic slack and flaws. Our exploration of the motivations, incentives and opportunities in start-up financing reveals an accumulating set of deficits that makes the current state of affairs more problematic than the conventional account would suggest. From founder control enabling self-centered, biased and risky behaviors, to funders with diverse incentives and capital sources, to start-up market “valuations” issues, the result is failed information-forcing systems and governance safeguards and directors who focus on constituent protections and not on their fiduciary duties
Some Thoughts on Supplemental Authorities Under Federal Rule of Appellate Procedure 28(j) and Related Musings
Get PDFThis essay--prompted by my work directing Georgetown Law\u27s Appellate Courts Immersion Clinic--discusses letters filed under Federal Rule of Appellate Procedure 28(j). A Rule 28(j) letter is the federal appellate rules\u27 principal mechanism for bringing supplemental authorities to an appellate court’s attention after the briefs have been filed. This essay covers (1) the Rule\u27s basic attributes; (2) whether a 28(j) letter may be adversarial; (3) the types of authorities that may be--and should be--cited in a 28(j) letter; (4) proper timing for the filing of a 28(j) letter; (5) when and how to respond to a 28(j) letter; and (6) what you should do when a 28(j) letter is inadequate to fully discuss a new and pertinent legal development
Congressional Oversight of US Intelligence Activities
Get PDFThis chapter examines the challenges, how they affect congressional oversight of intelligence, and Congress’s efforts to ensure accountability for United States (US) intelligence activities. The United States Government has engaged in intelligence collection and covert action since its earliest days. Congressional oversight of intelligence activities, however, has a relatively short history. It was not until the late 1940s, with the creation of the Central Intelligence Agency (CIA), that the US House of Representatives and Senate created entities – subcommittees of their Armed Services committees – with responsibility for intelligence oversight. The Church Committee revelations and other concerns that surfaced during that period led to a number of significant reforms to intelligence oversight. In the years since, there have been additional changes to structure and process. The Church Committee subject that generated perhaps the greatest outrage was its extensive chronicling of domestic electronic surveillance by intelligence agencies
Potential Competition and Antitrust Analysis: Monopoly Profits Exceed Duopoly Profits
Get PDFThis short note prepared for an OECD meeting in June 2021 examines several antitrust issues involving analysis of potential competition. While the analysis is not new, it is still useful to collect them together in a unified fashion to show how they are related. In this regard, all the analysis and conclusions flow from the overarching (and obvious) points that exclusionary conduct and agreements that maintain monopoly power very often harm consumers, and that monopoly profits typically exceed the combined duopoly profits earned by the dominant firm and the entrant, if there is successful entry. While this is not inevitably the outcome, it is a useful working assumption for most market situations involving acquisitions, exclusion or agreements with potential or nascent competitors
Hannah Arendt Meets QAnon: Conspiracy, Ideology, and the Collapse of Common Sense
Get PDFA June 2020 survey found one in four Americans agreeing that “powerful people intentionally planned the coronavirus outbreak.” In fall 2020, seven percent said they believe the elaborate and grotesque mythology of QAnon; another eleven percent were unsure whether they believe it. November and December 2020 found tens of millions of Americans believing in election-theft plots that would require superhuman levels of coordination and secrecy among dozens, perhaps hundreds, of otherwise-unconnected and unidentified miscreants.
Conspiracy theories are nothing new, and they raise a question that preoccupied Hannah Arendt in The Origins of Totalitarianism: whatever happened to common sense? Arendt analyzed both conspiracy theories and totalitarian ideologies; in both, she argued, common sense was replaced by “supersense” – her name for all-encompassing Theories of Everything that trace surface political events back to hidden causes. Refuting fake facts doesn’t help, she warned, because “if everyone always lies to you, the consequence is not that you believe the lies, but that no one believes anything at all anymore.” The result, she warns, is a dangerous mix of gullibility and cynicism.
My aim in this paper is threefold: to explain Arendt’s arguments, to explore their contemporary relevance, and to examine their consequences through the lens of virtue epistemology (the study of intellectual virtues and vices and their relation to reliable knowledge). In a section on “the epistemology of bullshit” I use virtue epistemologists’ concepts of epistemic malevolence and epistemic insouciance to examine the production, distribution, and consumption of bullshit, and to define a vice I call culpable credulousness.
The final sections discuss the collapse of moral common sense that led multitudes to believe that mass murder can be justified. Arendt sometimes wrote as though morality had mysteriously turned upside-down, replacing “Thou shalt not kill” with “Thou shalt kill.” I argue that this need not be so: the moral principle of justifiable self-defense, applied to fake facts about existential threats, can explain the behavior. Even so, Arendt powerfully analyzes the ways that rules of moral common sense fail in a society where factual common sense has lost its validity
\u3ci\u3ePenn Central\u3c/i\u3e in Retrospect: The Past and Future of Historic Preservation Regulation
Get PDFThe U.S. Supreme Court’s 1978 decision in Penn Central Transportation Co. v. City of New York is one of the best known cases in the Property Law canon. The Court there held that the refusal of the New York City Landmarks Preservation Commission to permit the owner to erect a 50-storey tower on top of Grand Central Terminal did not effect a taking of private property requiring the payment of compensation. The decision now is more than forty years old. Taught since then in most first-year Property classes, Penn Central endures as the foundation of the modern application of the Takings Clause of the Fifth Amendment to public regulation of land use Of course, the academic literature on the rationale for and the propriety of the regulatory takings doctrine is massive; scholars have sifted its doctrinal innovations and shortcomings. Not surprisingly, academic commentators have found Justice Brennan’s opinion for the Court lacking in doctrinal clarity and theoretic depth. Nonetheless, the Court has returned to Penn Central repeatedly because it reflects the enduring center of the Court’s conflicting views about imposing constitutional limits on the regulation of property use. The context of the litigation as it came to the Supreme Court helps explain that paradox: it was written to hold a diverse, tenuous majority of the Court.
But all this attention still understates the continuing significance of the decision. Penn Central is the most important decision on historic preservation law ever rendered in the United States. By validating stringent preservation restrictions on an addition to an individual landmark in the heart of the most voracious real estate market in the nation, the decision opened the way for a massive growth in the scope and intensity of municipal historic preservation law. Preservation in turn has shaped leading U.S. cities, as they have taken on new identities in a postindustrial society. The case is at least as important for its liberation of historic preservation law and the effect of that on U.S. cities, as for its statement of the regulatory takings doctrine. A reconsideration of Penn Central both highlights the growth of historic preservation regulation in urban land use law and clarifies the acceptable interpretive scope of the takings clause.
Penn Central was decided at a nadir in urban prospects, as deindustrialization and White flight had brought many U.S. cities to points of chaos and insolvency. But at the same time, a new urban economy based on technology, media, and knowledge had begun to grow. For industries based on sophisticated services and creativity, recruiting talented and educated workers became more critical than legally protected spaces for industrial production and shipping. Land use laws based on separating competing uses of land became less important, while fostering an urban environment with cultural and aesthetic appeal to highly mobile and educated workers became paramount. Urban renewal and highway construction were largely abandoned; cities used planning and regulation to encourage mixed use, walkable, culturally dense neighborhoods. In this context, historic preservation offered a legal means to encourage a lively urban environment.
This paper aims to explain how the Penn Central decision marks a crucial fulcrum in the evolution of land use law. The Court faced a new form of land use regulation--the historic preservation of a privately-owned landmark building in the urban center. The owners framed their challenge under the still inchoate regulatory takings doctrine, a decade before an increasingly conservative court sought to refashion it as a tool to restrain innovations in environmental law. The paper argues that what was intended as a modest opinion holding together a skittish majority to sustain the protection of a beloved train station by amalgamating landmark regulation to the traditional deference afforded zoning laws, resulted in a broad constitutional permission for historic preservation and other emerging land use regulatory tools.
To make this case, it will first present a narrative account of the litigation, illuminated by historic context and examination of the internal deliberation of the justices as shown in the papers of Justices Lewis Powell and Harry Blackmun. The paper will then discuss the elements that combined to produce a decision apparently modest but of broad consequence. It then argues that Penn Central created the constitutional foundation for a new era in land use law, characterized by new forms of historic preservation and, more broadly, by urbanistic attention to physical and cultural context rather than by separation of uses. The paper also recognizes, however, that the continuing evolution of cities present issues and challenges for historic preservation law not anticipated in 1978: economic inequality, persistent racial segregation, and climate change suggest that historic preservation law must evolve to adapt to present urban realities
Digital Health Passes in the Age of COVID-19: Are “Vaccine Passports” Lawful and Ethical?
Get PDFAs COVID-19 vaccination rates in high-income countries increase, governments are proposing or implementing digital health passes (DHPs) (vaccine “passports” or “certificates”). Israel uses a “green pass” smartphone application permitting vaccinated individuals’ access to public venues (eg, gyms, hotels, entertainment). The European Union plans a “Digital Green Certificate” enabling free travel within the bloc (see eTable in the Supplement). New York is piloting an IBM “Excelsior Pass,” confirming vaccination or negative SARS-CoV-2 test status through confidential data transfers to fast-track business reopenings. This paper examines the benefits of DHPs, scientific challenges, and whether they are lawful and ethical
Confrontation\u27s Multi-Analyst Problem
Get PDFThe Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem
Lockdowns, Quarantines, And Travel Restrictions, During COVID And Beyond: What’s The Law, And How Should We Decide?
Get PDFThe COVID-19 pandemic ushered in vast deprivations of liberty previously unthinkable: lockdowns, business closures, travel restrictions, and quarantines. Even witnessing China’s January 2020 lockdown of 11 million people in Wuhan, it seemed wholly implausible that London, Rome, or New York would shut down. But they did, and much more. At the initial height of the pandemic in April 2020, more than 3.9 billion people, about half the world\u27s population, were under stay-at-home orders. That same month, 43 US states were under stay-at-home orders.
What are the scientific, public health, and ethical justifications for various forms of liberty deprivations? Are they lawful? Which branch, or level, of government holds the power to deprive individuals of freedom and the right to travel? What principles and policy mechanism can we establish to do a better job of protecting both liberty and public health during future emergencies
Trade, Economy, and Work: A Shared Agenda for a Stronger Economic Future
Get PDFThe economies of the United States and Mexico have become inextricably linked. For both countries, the other is their top trading partner, with an annual value of $616.38 billion in 2019. Beyond cross-border trade, however, our global competitiveness is linked due to the depth of manufacturing integration. As a result, job creation and export growth are largely regional enterprises. Well over a billion dollars in commerce crosses the border each day, and the GDP of the six Mexican and four U.S. border states is larger than the GDP of all but the three largest countries in the world.
The new USMCA is the essential instrument for bilateral cooperation on economic issues, but alone it is not a viable strategy for domestic economic growth. For both López Obrador and Biden, achieving job creation and growth requires an approach that embraces the complementarities of our economies and works toward building a 21st Century economy that works for everyone in each nation.
The COVID-19 pandemic has led many companies to reevaluate their global production networks and prioritize supply chain security and resilience. Reshoring has tremendous potential to benefit both countries. Rather than relocating jobs from one country to the other, research shows that companies tend to create jobs on both sides of the border as they expand their investment in the regional economy. In the United States, some five million jobs depend on trade with Mexico, and a similarly large number of jobs in Mexico depend on trade with the United States. To expand the percentage of global GDP generated in our region and to further related job creation and capitalize on new opportunities, leaders must address issues surrounding coordination in essential industries, labor law reforms, and a lack of both high-level dialogue and clear mechanisms for local involvement in the binational economic relationship